Peterson v. Baca et al

Filing 5

ORDER DISMISSING CASE without prejudice to the filing of new petition in new action. Certificate of appealability is DENIED. Clerk shall send petitioner two copies each of habeas and IFP forms, copy of instructions, and copy of papers submitted in this action (sent 1/29/13). Clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 1/28/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STANLEY T. PETERSON,
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Petitioner,

3:12-cv-00674-LRH-WGC

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vs.

ORDER

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I. BACA, et al.,
Respondents.

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This habeas action comes before the Court for initial review. The filing fee has been paid.

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Turning to initial review, petitioner must file a petition on the Court’s required § 2254 petition

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form. The present petition is entirely handwritten, and petitioner invokes 28 U.S.C. § 2241. The

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determination of whether a petitioner must proceed under 28 U.S.C. § 2254 rather than 28 U.S.C. §

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2241 is a status inquiry directed to the source of the petitioner’s custody. See,e.g., Shelby v. Bartlett,

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391 F.3d 1061, 1063-64 (9th Cir. 2004). Petitioner is in custody pursuant to a Nevada state conviction.

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He therefore must proceed under § 2254, and he accordingly must use the Court’s required § 2254 form

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as required by Local Rule LSR 3-1.

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It does not appear that a dismissal without prejudice of this improperly-commenced action

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would materially affect the analysis of either the timeliness of a promptly-filed new action or other

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issues therein.1

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The online docket records of the s tate and federal courts reflect the following:

Petitioner Stanley T. Peters on s eeks to challenge his Nevada s tate conviction, purs uant to a guilty plea, of
s exual as s ault upon a minor under the age of fourteen. The judgment of conviction was filed more than a decade ago on
M ay 30, 2002. Petitioner did not file a direct appeal, and the time to do s o expired on M onday, July 1, 2002. A bs ent

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IT THEREFORE IS ORDERED that the petition is DISMISSED without prejudice to the filing

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of a new petition in a new action under a new docket number on the Court’s required form with either

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payment of the filing fee or a properly completed pauper application.

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IT FURTHER IS ORDERED that a certificate of appealability is DENIED.

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The Clerk shall send petitioner two copies each of the noncapital habeas petition and inmate

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pauper application forms, one copy of the instructions for each form, and one copy of the papers that

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he submitted in this action.

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The Clerk shall enter final judgment accordingly, dismissing this action without prejudice.

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DATED this 28th day of January, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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tolling or delayed accrual, the federal one-year limitation period accordingly would have expired one year later on July
1, 2003.
Petitioner has not filed any proceedings in the s tate dis trict court s eeking pos t-conviction or other collateral
review of his conviction or s entence. He filed an original petition for extraordinary relief in the s tate s upreme court on
December 15, 2004, well over a year after the apparent expiration of the federal limitation period. The s tate s upreme
court denied relief through s uch a procedure in lieu of a pos t-conviction petition filed in the s tate dis trict court, and the
remittitur is s ued on February 8, 2005. Petitioner has filed no other pos t-conviction or collateral review proceedings in
the s tate courts .
In No. 3:05-cv-00081, this Court held that petitioner’s prior January 20, 2005, federal petition, inter alia, was
time-barred, rejecting his arguments s eeking to es tablis h equitable tolling. The Ninth Circuit denied a certificate of
appealability on September 28, 2006.
It thus would appear that there is a s ubs tantial probability that a federal petition challenging petitioner’s s tate
conviction at this juncture both would be s ucces s ive and untimely, without regard to any interval between the dis mis s al
of this action without prejudice and the prompt filing of a new action. The Court notes that it recently dis mis s ed another
petition by Peters on without prejudice in No. 3:12-cv-0552-RCJ-W GC becaus e he neither paid the filing fee nor
s ubmitted a pauper application. The order in that cas e s pecifically referred to the filing of “a petition for a writ of
habeas corpus on the court-approved form” and directed the Clerk to provide petitioner a copy of the form. Petitioner
dis regarded the prior order and ins tead filed a handwritten petition in this action.

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Petitioner at all time remains res pons ible for calculating the running of the one-year federal limitation period,
timely pres enting exhaus ted claims , and otherwis e complying with all applicable procedural requirements , including
thos e applicable to s ucces s ive petitions . The Court expres s es no opinion as to whether the petition or claims therein are
s ubject to other deficiencies .

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